Ten things to remember when filling in the Employment and Support Allowance forms

(1) Feedback to The MEA indicates that a significant proportion of people with ME/CFS are finding it very difficult to qualify for ESA – the long-term sickness benefit for people who are unable to work. Entitlement to ESA is assessed by using what is called the Work Capability Assessment (WCA). The WCA does not determine entitlement to ESA on the basis of the named medical condition (eg ME/CFS) a person has. Your entitlement to ESA is supposed to be based on the effect that the disability or health problems resulting from having ME/CFS has on your functional capability to work.

(2) The situation regarding ESA appears to have become even more difficult for people with ME/CFS following legislation to bring in a revised set of WCA descriptors in 2011. This legislation also removed some of the original WCA descriptors (eg the one on cognitive dysfunction – problems with short-term working memory and concentration) that are very relevant to people with ME/CFS. More information on the WCA descriptors can be found at: www.meassociation.org.uk/?p=4534 (>> pdf of Statutory Instrument)

(3) People who are still claimin ICB are due to be re-assessed to see if they are eligible for ESA. Feedback to The MEA indicates that they are having very similar difficulties.

(4) The WCA descriptors are a list of questions relating to various aspects of disability and ill health along with point-scoring answers. The MEA believes that the current set of descriptors are not a fair or effective way of assessing capability for work in people who have long-term fluctuating medical conditions such as ME/CFS. Our reasons for coming to this conclusion can be found in our submission to Professor Malcolm Harrington’s review of the WCA: https://meassociation.org.uk/2010/09/me-association-submission-to-the-independent-work-capability-assessment-benefit-review/strong>. Since then The MEA has been involved with a group of charities representing people with fluctuating medical conditions in the production of a report that contains recommendations on how the WCA descriptors could be made fair and effective for people with fluctuating medical conditions. The recommendations in the report, along with recommendations covering mental health descriptors, are now being assessed by the DWP in an evidence-based review. The results of the review should be available in late summer 2013. A copy of the Fluctuating Conditions Group report can be downloaded on the MEA website:

https://meassociation.org.uk/wp-content/uploads/2011/05/Fluctuating_conditions_report_FINAL.pdf

(5) So if you are applying for ESA, or appealing against a refusal to grant ESA, it is very important to give careful consideration to the way you provide answers to the WCA descriptor questions.

(6) During a House of Lords debate, which sought to annul the legislation which revised the WCA descriptors, a number of useful contributions were made which relate to people with ME/CFS and other fluctuating conditions. Lord Freud (DWP government minister) made the following important statement which is very relevant to people with fluctuating medical conditions:

“It must be possible for all the descriptors to be completed reliably, repeatedly and safely, otherwise the individual is considered unable to complete the activity.”

A Hansard transcript of the debate can be found on the MEA website: www.meassociation.org.uk/?p=5180

(7) There is a high rate of success on appeal involving ESA refusals – with around 40% of DWP decisions being overturned. So anyone who believes they have not been treated fairly should consider going to appeal.

(8) The chances of success at appeal are often increased by appearing in person and providing good supportive medical evidence from health professionals who are involved in your care – especially if this was not provided at the time of the application.

(9) Useful information on benefit appeal procedures can be found in a presentation given by Dr Jane Rayner (Chief Medical Member of Social Security tribunals) to the Forward ME Group at their meeting on 26 January 2011. The minutes of this meeting can be found here: www.meassociation.org.uk/?p=4569

The Tribunal Service has produced a useful booklet called ‘How to Appeal – A Step by Step Guide’. This can be downloaded from the Tribunal Service website:
http://www.justice.gov.uk/downloads/tribunals/social-security-and-child-support/forms-and-how-to-appeal/HTA_English_Final_rev.pdf

(10) The MEA has a fully comprehensive list of leaflets covering all aspects of the benefits system – including applications for individual benefits and appeals.

Information prepared in March 2013 by Dr Charles Shepherd

Please note that regulations relating to DWP benefits are constantly changing and that this information is correct at the time of publication.


This ’10 Key Points’ file is also available as a downloadable, 2-page leaflet. Please click HERE for it.

9 thoughts on “Ten things to remember when filling in the Employment and Support Allowance forms”

  1. I have been granted permission to appeal to the upper tier tribunal based on something I found out first through an online article in the BMJ. It talked about the ATOS WCAs for those with neurological conditions that should be done by doctors and not other HCPs (nurses or physiotherapists.)

    I asked ATOS about this and they forwarded it via a Freedom of Information request to the DWP. In the meantime, they acknowledged that doctors should assess certain conditions. I received a table that contained two lists. One with conditions that doctors should assess and the other with conditions that any HCP is qualified to assess. ME featured in none of the lists so I sent another FOI. Once I have the information on who should assess a claimant with ME, I will make this available.

    1. Dr Charles Shepherd

      Thanks – very helpful.

      It looks as though this may be something that The MEA will need to pursue with ATOS. If you can’t get an answer let me know and I will see if we can get a parliamentary question.

      I would like to hear from anyone with ME/CFS who has been claiming ICB and has now been assessed – successfully or unsuccessfully – for ESA.

      Please send feedback via ME Connect: meconnect@meassociation.org.uk

      We are currently in the final stages of drafting the report on WCA descriptors for fluctuating conditions. This has to be sent to Professor Harrington at the end of April.

      1. I was recently to go to ATOS the first time I was to sick to attend let alone stand up the second time Dec 8th I attended but was told I was not going to be seen that they would re-boom after Christmas then when time to attend I was not able so I called ATOS was told to contact DWP they said they are now cutting me off from benefits now I have nothing no food either THANKS ATOS THANKS DWP SK238404A…Maybe I should send them back their ‘debt’ card…I will never ever forget how inhumane this Country really is now ‘wait’ until God returns my strength they have not a clue what this illness does to people I guess they think we are just tired Fatigued…They did the same to me last year left me with nothing thanks to the homeless center who gave me food vouchers…Thanks David Cameron you are a real ‘human’, someone told me ‘human being’ is actually a Monster is that true…

    2. MsJustice

      May I ask you a question please?

      I recently had an ESA appeal disallowed for my epilepsy. I was assessed by a HCP and not a GP or as they say a ‘proper doctor’. Since epilepsy is an obvious neuro-condition and according to what you have discovered then surely I should have been assessed by a qualified doctor and not a nurse..

      Can you confirm that this is the case.

      I would be very grateful if you could because I am assuming if ATOS/DWP failed to conform to their own rules then this is surely an ‘error in law’

      Many thanks

  2. i am a bit dubious about only qualified doctors assessing ME/CFS people at atos interviews. in 2012 i had my first ever atos test by a ‘so called’ doctor. it is not untill AFTER the DWP refuse your appeal that you get the full copy of their report. my ‘so called’ doctor is listed with the BMC, but is not listed as a GP and has no listed special qualifications.
    that i could put up with, but what angered me most was that she,at best, missrepresented my answers, and at worst actually lied in the report.
    for instance;she reported that my condition was “getting better” after almost 18 years ! getting up between 8.30 and 10.00 became “gets up at 8.30 every day “;stated that i had no problems with short and long term memory,etc.

    i was also marked down for being clean,tidy and shaved.i feel as though i have no back-up against these people and this is why i have been taken off of benefits since january 2013.

    1. I too had this with atos a nurse did my medical which consisted of two questions which i had already answered on the form then she went & made a phone call came back said that was it,as i was leaving the security guard asked me had i upset her i said no he replied well their usually in there a hour an a half i was 28 minutes,report said i was fit to work even though i have serious arthritis in both shoulders of which my right shoulder was found to be just bone on bone some 10years ago & has got alot worse,i have a hand injury due to severed tendons,& ive been diagnosed with a sleep disorder which i think is more ME,but anyway 2years on basic money went to court before i had sat down the women judge had told me i won then went on to ask if i wanted to go back to work i said if i could id love too so she said they would put me in the group where i got more money & in the next twelve months i was to attend the job center to see if it was possible to go back to work then i was to have another medical all within twelve months & if it turned out that i couldnt return to work i would be put it the support group,well nothing happened i called the job center & was told to wait they would get in touch they didnt,was also told they dont get people calling who would like to go back to work,so now some 4years down the road i get a interview at the job center i thought great they have got round to this but no i get there to be told i had to attend a work group & if i didnt they wouls stop my money,i explained what had happened at court man said when i attend the work group they had the option to put me in support group,as now my health is at an all time low,i attended & basically ive got to go there at least times a week then every day,& i was told what the job center had told me was rubbish,so now im stuck as i had another medical & when i atteneded it it was only the same nurse doing the medical who i had to go to court against,she hid in a room got the security guard to come & tell me it wouldnt be in my interest to have her do the medical he even remarked she was a horrible woman,so i get another appointment two week later at same place i have to see one of the people she works with as you can imagine it goes well i get less points than my first one,he doesnt put down anythink about two of my disabilities & now im at the point of getting letters to say they will stop my money,well if i cant do it what am i supposed to do,my doctors say i cant go back to work do i ignore them but then if i have a accident what happens do they turn round & say tough luck your doctor said you were unfit,its a nigthmare ive appealed but they havent received my letters on the last two occasions,the last time i went to the work group they wanted me to do a cpc to be a labourer on a building site which i find a joke as it looks like il be having a joint replacement.
      would love some help off of anybody…….

  3. I want to know how people who have had M.E. for a very long time and no longer get any real medical support and help are supposed to qualify for benefits. I have had it for 21 years. I got to visit a neurologist in the first year. Some years ago I found out about a clinic for sufferers and was referred but they wanted me to come regularly and as I cannot drive or use public transport and am virtually housebound unless my husband, who works full time, is available, it wasn’t possible. I receive no treatment, if I go in about pain or problems they suggest exercise, looking at my obesity, which is laughable since I can barely walk, and since one doesn’t have a named GP any more any time I do see someone for some health issue arising they seem not to even know I have it unless I point it out. Who on earth could I ask for “supportive medical evidence”?

  4. I went for a ESA claim and got totally stitched up by the Atos person
    But now i just went for a PIP Atos assessment so this time i took a USB stick that has a voice recorder in, get them on ebay under £10
    So will get a copy of her report and if it is wrong this time i will have proof
    This is easy tech, charge it then flick a switch and 3 hours ish of voice tape. Then play back on the computer.

  5. Surely the doctors working for the DWP are breaking their codes of conduct as outlined by the GMC….quote:

    Members’ code of conduct

    a. selflessness: holders of public office should act solely in terms of the public interest
    b. integrity: holders of public office must not place themselves under any obligation to people or organisations that might try inappropriately influence them in their work. They should not act or take decisions in order to gain financial or other material benefits for themselves, their family or their friends. They must declare and resolve any interests and relationships
    c. objectivity: holders of public office must act and take decisions impartially, fairly and on merit, using the best evidence and without discrimination or bias
    d. accountability: holders of public office are accountable for their decisions and actions and must submit themselves to the scrutiny necessary to ensure this
    e. openness: holders of public office should act and take decisions in an open and transparent manner. Information should not be withheld from the public unless there are clear and lawful reasons for so doing
    f. honesty: holders of public office should be truthful
    g. leadership: holders of public office should exhibit these principles in their own behaviour. They should actively promote and robustly support the principles and be willing to challenge poor behaviour wherever it occurs.

    I would say that they are breaking their codes of conduct , as set out above….certainly onB. C and F. Has anyone here considered taking their case against a dishonest doctor to the GMC.
    My understanding so far is that they are acting in an almost illegal manner by working for the DWP……The DWP is ONLY interested in removing people from ESA …therefore a doctor working for them is acting with bias from the outset !!!!
    My freind has just been told ‘You are fit for work’….he has a compression fracture of the spine, osteoarthritis in hips and knees, asbestosis etc etc…….the DWP decided he was fit for work based on a doctors report.The doctor was employed by them

    I think that this is an avenue to explore further, I suffer from ME and have had endless problems with the DWP, the next time around I will record my medical assessment and then shall follow it all the way through to the GMC if necessary

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